Sri v Aswathnarayan Vs the State of Karnataka

SRI V. ASWATHNARAYAN, AGED ABOUT 26 YEARS, S/O. SUBBARAYUDU, DRIVER, R/AT No.3/252, ISLAPURA VILLAGE, WARD No.3, VENKATAREDDYPALLI POST, PENAGONDA TALUK, ANANTAPUR DISTRICT, ANDHRA PRADESH-515 110.

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…PETITIONER

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(BY SRI RAGHAVENDRA A V., ADVOCATE)

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AND:

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Digitally signed by VALLI MARIMUTHU

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Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA, BY THE INSPECTOR OF EXCISE, YELAHANKA RANGE, BANGALORE, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU-560 001.

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…RESPONDENT

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(BY SMT. SOWMYA R., HCGP)

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THIS CRL.P IS FILED U/S 482 CR.PC (FILED U/S 528 BNSS) PRAYING TO ISSUE AN APPROPRIATE ORDER AND QUASH THE

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FIR CR.No.55/2023/24 FILED BY THE RESPONDENT - INSPECTOR OF EXCISE, YELAHANKA RANGE, BANGALORE DISTRICT, AGAINST THE PETITIONER, WHICH IS SUBMITTED BEFORE THE HON'BLE VII ADDL. CMM AT BENGALURU, REGISTERED FOR AN ALLEGED OFFENCE P/U/S 11, 14, 15, 32, 34, 38(A), 40, 43(A) OF THE KARNATAKA EXCISE ACT, 1965.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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In this petition, petitioner seeks the following reliefs;

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"a) Issue an appropriate order and quash the FIR Cr.No.55/2023/24 filed by the respondent - Inspector of Excise, Yelahanka Range, Bangalore District, against the petitioner, which is submitted before the Hon'ble VII Addl. CMM at Bengaluru, registered for an alleged offence p/u/s 11, 14, 15, 32, 34, 38(A), 40, 43(A) of the Karnataka Excise Act, 1965, to secure the ends of justice and to prevent abuse of process of Court.

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b) Pass such other orders, as the petitioner is entitled to in the facts and circumstances of the case, in the interest of justice and equity."

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Heard learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State and perused the record.

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A perusal of the material on record will indicate that on 22.03.2024, without obtaining a warrant or a Police report and without recording reasons to believe as to why the warrant and the Police report should be dispensed with, the respondentPolice seized the subject liquor bottles from the petitioner. It is contended that the impugned seizure as well as proceedings are contrary to Sections 53 and 54 of the Karnataka Excise Act, 1965 as held by this Court in the case of Shiva Kumar vs. The

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State of Karnataka by Excise Inspector and another¹ , inasmuch neither a warrant was obtained nor reasons to believe have been recorded in writing so as to dispense with the requirement of obtaining a warrant, much less obtaining a police report prior to seizing the subject liquor from the petitioner, and as such, the impugned proceedings deserve to be quashed.

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Per contra, learned High Court Government Pleader submits that there is no merit in the petition and the same is liable to be dismissed.

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1 Crl.P.No.5879/2024, DD 21.01.2025

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5. In the case of Shivakumar (supra), this Court held as under:

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" 3. In addition to reiterating the contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that, before conducting the impugned search and seizure on 05^th June, 2021, whereby, the respondents are alleged to have seized the liquor bottles from the petitioner, it was incumbent upon the respondents to either obtain a warrant or record reasons to believe in writing so as to dispense with the obtaining of warrant as mandated under Section 54 of the Karnataka Excise Act. In this context, it is submitted that, in the absence of reasons to believe recorded in writing so as to dispense with the requirement of obtaining of warrant, the impugned proceedings resulting in seizure of liquor bottles from the petitioner and culminating in the impugned F.I.R. and charge sheet are contrary to the aforesaid provisions and the same deserves to be quashed.

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Secondly, learned counsel for the petitioner invited my attention to the impugned F.I.R. and charge sheet in order to point out that before registering the F.I.R., it was incumbent upon the respondents to file a report. In this regard, it is submitted that, except conducting search and seizure on 05^th June, 2021 and drawing up a mahazar, a separate report in this regard was not filed by the respondents before registration of F.I.R., which would also vitiate the impugned F.I.R. and charge sheet. In support of his submission, learned counsel for the petitioner placed reliance on the judgment of this Court in the case of DAYANANDA @ R.

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BABU AND ANOTHER vs. THE STATE OF KARNATAKA REP. BY EXCISE SUB-INSPECTOR, HUNSUR RANGE in Criminal Revision Petition No.129 of 2021 disposed of on 04^th April, 2024 and in the case of CHENGAPPA M.S. vs. THE STATE BY EXCISE POLICE STATION, HUNSURU in Criminal Petition No.10259 of 2021 disposed of on 22^nd March, 2024.

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Per contra, learned High Court Government Pleader for respondents submits that there is no merit in the petition and the same is liable to be dismissed.

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A perusal of the material on record will indicate that the learned counsel for the petitioner is correct in his submission that before conducting the impugned search and seizure, whereby, the alleged liquor bottles from the petitioner were seized, the respondents had not obtained any search warrant; so also, necessary reasons to believe had not been recorded in writing so as to dispense with the obtaining of search warrant as mandatorily required under Section 54 of the Karnataka Excise Act.

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Under identical circumstances, the Co-ordinate Bench of this Court held as under:

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In Criminal Petition No.10259/2021.

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"ORDER

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This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C. No.63/2021 pending on the file of principal Civil Judge and JMFC, Hunsur, arising out of Crime No.14/2019-20/2610SIE1/261010 registered by Karnataka Excise Department, Hunsur Sub-Division,

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Hunsur, Mysuru, for the offences punishable under Sections 11, 14, 32, 34, 43(A) of Karnataka Excise Act, 1965 (for short 'K.E. Act').

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2. Heard the learned counsel appearing for the petitioner and learned High Court Government Pleader for respondents.

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3. The case of the complainant is that he received information from one R. Somashekhar, Assistant Horticulture Officer, HD Kote Taluk SST-2, who was working in the temporary check post of Manuganahalli, alleging that on 16.11.2019, the election code of conduct was in force and during 2019 Karnataka Assembly Elections, Hundai Crerta 4 wheel vehicle was carrying liquor. When the vehicle was searched around 3.50 p.m., 12 bottles of 750 ML Morpheus XO Blended Premium Brandy were apprehended. After the receipt of intimation, the excise inspector along with team went to the spot, seized the liquor and the car, and thereafter, went to the police station and registered FIR and in turn, filed charge sheet which is under challenge.

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4. Learned counsel for the petitioner has contended that there is violation of Sections 53 and 54 of the K.E. Act. Without recording reasons, the respondent has arrested the petitioner and seized the liquor and produced before the Court. There is no reference in the FIR of recording reasons, but in the spot mahazar, the respondent has subsequently added the record of reasons, and the respondents have not obtained warrant under Section 53 of the K.E. Act. Therefore, seizing the articles, registering the FIR without recording reasons and

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commencement of investigation, is violation of the provisions of the K.E. Act. Therefore, the FIR is not sustainable. Hence, prayed to allow the petition.

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In support of his arguments, the learned counsel has relied up on the following judgments of the Hon'ble Supreme Court and this Court:

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(i) K.L. Subbayya Vs. State of Karnataka - (1979) 2 SCC 115.

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(ii) L Srinivas Vs. The Authorised Officer and another - ILR 1999 KAR 2872.

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(iii) Sri. Abhijeet Lalchand Landge And Others Vs. State of Karnataka And Another in Criminal Petition No.5855/2019 Dated on 26.11.2019.

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(iv) Kumar vs. State of Karnataka And Another in Criminal Petition No.8658/2019 Dated on 08.01.2020.

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(v) Babu Naika And Others Vs. State of Karnataka in Crl.R.P. No.52/2014 decided on 09.03.2020.

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5. Per contra, learned High Court Government Pleader has opposed the petition and contended that the respondent, after following all the procedures, has arrested the petitioner and therefore, prayed for dismissing the petition.

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6. Having heard the learned counsel appearing for the parties, perused the records.

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7. On perusal of the records, it is clear that one Somashekhar, Assistant Horticulture Officer, gave an intimation to the Excise Inspector that at 3.50 p.m., they apprehended the person having liquor of 10 bottles of brandy, without permit or licence, which is in violation of the provisions of the K.E. Act. The Excise Inspector

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seized the articles under Panchanama and thereafter, came to the police station and registered FIR.

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8. The contention of the petitioner is that though in the panchanama, it is mentioned that FIR was prepared after recording the reasons for not obtaining the warrant under Section 53 of the K.E. Act, there is possibility of the accused flee away from the case and escape from the clutches of law. Record of reasons to be recorded before obtaining the warrant. In FIR, it is stated that the Excise Inspector came to the spot, seized the car and apprehended the accused and came to the office and registered FIR. There is no mention about reducing into writing of reasons or not recording reasons under section 54 of the K.E. Act, which is mandatory.

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9. As per Section 53 of the K.E. Act, in any case, there is apprehension by the officer that there is chance of accused fleeing away from the justice, the question of coming to the Court for obtaining warrant, does not arise. Here, in this case, there is an electron officer in the check post and he has already caught the accused red hand and kept in his custody. Therefore, Excise Inspector is required to obtain the warrant under Section 53 of the K.E. Act as there is no chance of the petitioner flee away from the spot.

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10. That apart, either in the complaint or in the FIR, which is registered by the respondent-complainant, he has not whispered anything about the record of reasons for visiting the spot or apprehending the accused, whereas in the panchanama, the record of reasons is mentioned and it was reduced into writing, thereafter,

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went to the spot. The record of reasons has not accompanied with the FIR in order to show that the complainant has obtained warrant before registering the FIR. He visited the spot and registered the FIR. There is clear violation of the provisions of the K.E. Act. There is no mention in the FIR for not obtaining warrant, but it is mentioned in panchanama and it is only after thought. It is not sent immediately after the seizure along with PF and FIR. Such being the case, the panchanama appears to be created by the investigation officer after filing of the charge sheet or before filing of the charge sheet. The entire bottles were not sent to the examination and only four bottles were sent. Here also, the violation of the provisions of the K.E. Act is found.

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11. This Court, in the case of DAMERA UPENDRA RAO AND ANOTHER VS. STATE BY EXCISE DEPARTMENT POLICE in Criminal Petition No.2121/2022 decided on 14.12.2022, has considered the aforesaid aspect and quashed the proceedings. Further, in the case of G. PUTTARAJU Vs. STATE OF KARNATAKA AND ANOTHER in Writ Petition No.20816/2023 decided on 31.01.2024, this Court has already held that without registering FIR, commencement of investigation, is in violation of the provisions of the Cr.P.C. 12. That apart, sending the less quantity of the bottles than the seized quantity of bottles for examination, and without recording the reasons for not obtaining warrant, seizing the articles and commencing the investigation without registering FIR, is violative of the provisions of the K.E. Act as well as Cr.P.C. Therefore, the criminal proceedings is not sustainable in law.

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12. That apart, sending the less quantity of the bottles than the seized quantity of bottles for examination, and without recording the reasons for not obtaining warrant, seizing the articles and commencing the investigation without registering FIR, is violative of the provisions of the K.E. Act as well as Cr.P.C. Therefore, the criminal proceedings is not sustainable in law.

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13. Therefore, the criminal petition is allowed. The criminal proceedings in C.C. No.63/2021 pending on the file of principal Civil Judge and JMFC, Hunsur, arising out of Crime No.14/2019-20/2610SIE1/261010 registered by Karnataka Excise Department, Hunsur Sub-Division, Hunsur, Mysuru, is hereby quashed."

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In Criminal Petition No.278 of 2018 c/w Criminal Petition No.279 of 2018

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"ORDER

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The petitioner-accused No.2 has filed these criminal petitions under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C. No.293/2017 and 277/2015 respectively, both on the file of the Civil Judge and Judicial Magistrate First Class, Narasimharajapura wherein the petitioner was charge sheeted by the respondent for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 (hereinafter referred to as 'Act' for short).

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2. Heard learned counsel for the petitioner in both case and the learned High Court Government Pleader for respondent State.

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3. The case of the prosecution in criminal petition No.278/2018 is that one K.R. Sunitha, Police SubInspector of N.R. Pura Police Station, filed a complaint alleging that she received credible information that on 24.09.2016 at 6.30 a.m. when she was on patrolling duty, accused No.1-Padmanabha was selling liquors in front of provision store without any permit or licence. Immediately, the complainant-officer along with panchas went to the spot, seized liquor bottles under panchanama and came back to police station, registered a case in Crime No.111/2016 for the offences punishable under Sections 32 and 34 of the Act. During investigation, it was found that accused No.1 given voluntary statement that the petitioner-accused No.2 supplied liquors to him. Therefore, the police filed charge sheet against the petitioner-accused No.2, which is under challenge.

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Whereas in Criminal Petition No.279/2018, the case of the prosecution is that, on 13.02.2015, one Sadananda, who is a Police Circle Inspector, filed a complaint alleging that he received credible information that on 13.02.2015 at 7.30 a.m., Halesha-accused No.1 said to be selling liquors without permit or licence in front of his shop. Immediately, he along with panchas went to the spot and seized 13 pouches of Amrut's Silver Cup Brandy, 11 pouches of Haywards Cheers Whisky, 17 tetra packs of 3 Aces Whiskey and other brands of whisky, totaling worth Rs.1,888/-, which is more than the permissible quantity. After registering the case, during investigation, it was revealed that the petitioner-accused No.2 supplied liquor to the accused No.1 in the present cases. Therefore, the police filed charge sheet against the

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petitioner showing him as accused No.2, which is under challenge.

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4. In both cases, as the issue and point of law is one and the same and as the petitioner-accused No.2 is also one and the same, they are taken for common disposal.

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5. Learned counsel for the petitioner has mainly argued that before going to search and seize the property, the police officer or police department officials shall request permission to issue search warrant form the Magistrate to search or seize the liquors as required under Section 53 of the Act and if the officials are unable to get warrant and they want to proceed, immediately they have to write reasons and record in a dairy maintained by the officer and proceed as per Section 54 of the Act. The police officials have not followed the mandatory provisions of Sections 53 and 54 of the Act. Therefore, the criminal proceeding against the petitioner is not sustainable.

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In respect of his arguments, the learned counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court in case of K.L. Subbayya Vs.State of Karnataka reported in ( 1979)2 SCC 115 and also the Coordinate Bench of this Court in Crl.Appeal No.2619/2012 decided on 18.09.2020.

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6. Per contra, learned High Court Government Pleader for respondent State has contended that the petitioner-accused No.2 has supplied liquor to accused No.1 in both cases and the police seized the same under panchanama. The petitioner-accused is a habitual

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offender and therefore, prayed for dismissing the petitions.

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7. Having heard learned counsel for the parties and on perusal of the records, it is not in dispute that the police have seized in front of the shop of accused No.1 wherein he was found in possession of liquors weighing more than the permissible quantity without any permit/licence. However, In both cases, the police officials have not at all stated anything about obtaining warrant or not given requisition for obtaining warrant as per sections 53 of the Act and also recorded any reason for not obtaining warrant as per Section 54 of the Act. They blindly seized the liquors from the custody of accused No.1. Apart from that, there is no material placed on record to show that the petitioner is a habitual offender. Except voluntary statement of accused No.1 that petitioner-accused No.2 has supplied liquors to accused No.1, no information is collected by the investigation officer that the petitioner is running wine shop or the bar. Such being the case, conducting criminal proceedings against the petitioner is abuse of process of law.

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8. The Hon'ble Supreme Court in the case of K.L. Subbayya Vs. State of Karnataka reported in (1979)2 SCC 115 and the Coordinate Bench of this Court in Crl. Appeal No.2619/2012 decided on 18.09.2020 have quashed the proceedings against the petitioner therein. Therefore, I am of the view that the criminal proceedings against the petitioner are liable to be quashed.

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9. Accordingly, both the petitions are allowed. The criminal proceedings in C.C. No.293/2017 and 277/2015,

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both on the file of the Civil Judge and Judicial Magistrate First Class, Narasimharajapura, are hereby quashed."

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As is clear from the aforesaid judgments of this Court, compliance of provisions contained under Section 54 of the Karnataka Excise Act is mandatory and non-compliance thereof and non-obtaining of a search warrant prior to the search and seizure would vitiate the impugned F.I.R., charge sheet and all further proceedings pursuant thereto, deserves to be quashed.

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Insofar as the contention regarding registration of F.I.R. without filing the report as required under Section 154 of the Criminal Procedure Code is concerned, in the case of DAYANANDA @ R. BABU (supra), under identical

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circumstances, the Co-ordinate Bench of this Court held as under:

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"15. On perusal of the entire documents, Ex.P1 is considered as seizure mahazar under which liquor bottles have been seized by stating that the accused were transporting it without having any valid license. It is the submission of learned counsel for petitioner that the search and seizure conducted without registration of FIR in respect of cognizable offence is bad in law is concerned, it is relevant to refer to the provision under Sections 154 and 157 of Cr.P.C..

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“154. Information in cognizable cases. —

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(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in

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charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:

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[Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, [section 376A,section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:

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Provided further that—

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(a) in the event that the person against whom an offence under section 354, section 354A, section 354B,section 354C, section 354D, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be;

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(b) the recording of such information shall be video graphed;

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(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-

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section (5A) of section 164 as soon as possible.]

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(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

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(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

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157. Procedure for investigation .—(1) If, from information received or otherwise, an officer in charge of a 80 police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:

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Provided that—

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(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

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(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

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[Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.]

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(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.”

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On careful perusal of the above said provisions, it appears that there are two kinds of FIRs namely, the FIR can be registered by the informant which was duly signed by him. Secondly, the FIR can be registered by the police officer himself on any information received by him. In both

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the cases, the information should be reduced into writing and thereafter, the investigation must be carried out.

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16. Ex.P1 being a panchanama, it cannot be termed as a complaint. FIR cannot be registered on the basis of panchanama, however, in the present case, the respondent has registered he FIR on the basis of panchanama which is erroneous and not proper. The Trial Court ought not to have acted upon such FIR and cognizance should not have been taken on the strength of the said FIR. However, the Trial Court and the Appellate Court have committed error by considering the said FIR as appropriate and proper and recorded the conviction. Such conviction would be rendered as ineffective and the same can be termed as non est in law.

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17. When the registration of FIR itself is void abinitio, the subsequent proceedings including the judgments are liable to be set aside. Therefore, the interference by the Revisional Court in setting aside the concurrent findings is justified.

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18. In the light of the observations made above, I proceed to pass the following:-

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ORDER

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(i) The Criminal Revision Petition is allowed. (ii) The judgment of conviction dated 26.12.2015 and order of sentence dated 29.12.2015 in C.C.No.332/2009 on the file of Civil Judge and JMFC., Hunsur and its confirmation judgment and order dated 12.01.2021 in Crl.A.No.12/2016 on the file of VIII Additional District and Sessions

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Judge, Mysuru, Sitting at Hunsur are set aside.

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(iii) The petitioners are acquitted for the offences punishable under Sections 32, 34 and 38-A of Karnataka Excise Act.

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(iv) Bail bonds executed, if any, stand cancelled."

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In the instant case, it is an undisputed fact which is borne out from the material on record that, except the mahazar dated 05^th June, 2021, a separate/independent report prior to registration of F.I.R. had not been filed by the respondents and non-filing of the Police report prior to the registration of F.I.R. would vitiate the F.I.R., charge sheet and all further proceedings pursuant thereto as held by this Court in the case of DAYANANDA @ R. BABU (supra). Under these circumstances also, the impugned proceedings deserves to be quashed.

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In the result, I pass the following:

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O R D E R

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1) Criminal Petition is allowed ; and

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The entire proceedings in C.C. No.993/2023 on the file of the Principal Civil Judge and JMFC., Hoskote, Bengaluru Rural District against the petitioner for the offences punishable under Sections 11, 12, 14, 32 and 38A of the Karnataka Excise Act are hereby quashed. "

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The aforesaid judgment is directly and squarely applicable to the facts and circumstances of the instant case, inasmuch as before seizing the subject liquor from the petitioner, the respondent neither obtained a warrant nor recorded reasons to believe, in writing, for dispensation of the warrant. It is also relevant to state that as held in the case of Shivakumar (supra), in the absence of police report, the impugned proceedings including the impugned seizure would stand vitiated and the same deserve to be quashed on this ground also.

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In the result, the following;

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Order

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(i) The petition is allowed.

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(ii) The FIR in Cr.No.55/2023/24 registered by the respondent - Inspector of Excise, Yelahanka Range, Bangalore District, against the petitioner for the alleged offences punishable under Sections 11, 14, 15, 32, 34, 38(A), 40, 43(A) of the Karnataka Excise Act, 1965, is hereby quashed.

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